Clean Water Act beached by Congress
by Paul Blackburn and Kari Gray
he Clean Water Act is the only law that protects all
of our coastal waters, wetlands, lakes and rivers from pollution and destruction.
It sets limits on what amounts and what types of discharges industry and
municipalities can dump in our waterways. It is also the only law that protects
wetlands from total destruction. A strong Clean Water Act is crucial to
protecting a healthy aquatic environment and a healthy way of life that
provides clean water for fishing, swimming and drinking.
In 1972, Congress passed the first Clean Water Act and
set out three main goals: zero discharge, fishable and swimmable waters
and no toxics in toxic quantities. We have not yet met these goals.
This year, the Clean Water Act is due for "reauthorization." But
the news from Congress is bleak. Representative Bud Shuster of Pennsylvania,
who chairs the Committee on Transportation and Infrastructure, wants to
gut the existing Clean Water Act.
A good reauthorization bill would maintain our current
level of protection and improve protection by:
But Chairman Shuster has already demonstrated his intent
to severely weaken the Clean Water Act: Rep. Shuster and Rep. Hayes of Louisiana
wrote a legislative proposal in May 1994 that outlined their intent to stop
protecting wetlands and to allow more pollution into our nation's waters.
- Controlling polluted runoff, the largest remaining source of water
- Strengthening enforcement and citizen's right-to-know. We need "posting"
requirements to warn swimmers and anglers away from polluted waters.
- Strengthening the National Estuary Program (NEP) so that polluted
fisheries can be cleaned up and coastal economies restored.
- Phasing out the certain highly toxic chemicals including chemicals
that cause reproductive disorders, cancer and birth defects.
The Shuster/Hayes proposal would weaken current protection in many ways:
Currently, the level of toxic contamination in a river
or lake that is considered "acceptable" is based on public health
needs. The Shuster/Hayes bill would allow the EPA and the states to "balance"
a polluter's economic situation against public health, thereby giving bureaucrats
free reign to play politics with health. Even more alarming - they wouldn't
need to warn people who swim or fish in the resulting pollution.
The proposal's watershed planning section could be used
to allow point source dischargers, including industries and wastewater treatment
facilities, to decrease their efforts to abate pollution.
Wetlands would have almost no real protection from developers and oil companies
that want to fill or drain them for profit. Currently, only 3 percent of
wetlands development permit applications to the Corps of Engineers are denied.
Under this draft, guidelines would be weakened even further, making refusal
even more unlikely.
Current enforceable requirements to reduce polluted
runoff in coastal areas (under the 1990 Coastal Zone Management Act) would
cease to be enforceable.
All take, no give
Through a controversial interpretation of "takings,"
the bill would make taxpayers pay for the costs of pollution control. In
practical effect, this means that the costs of pollution control wouldn't
be passed on to the consumer of a good or service, but onto all taxpayers
through the log jam of tax-and-spend-bureaucracy.
The Fifth Amendment provides that the government may
not "take" private property for public use without "just
compensation." Thus, when federal, state or local governments need
land to build highways, dams, airports, etc., they must buy such land from
private landowners. When the government and the landowner are not in agreement
on the purchase, the courts come in to resolve the issue. If it is determined
that the government needs the land to protect the public interest, then
the government may "take" the land, and the courts determine a
fair price to be paid to the landowner.
The U.S. Supreme Court has consistently maintained this
position, but has also held that private landowners have a duty to refrain
from using their land in a manner which would cause injury to neighboring
landowners or the general public. Therefore, "uses" of land can
be regulated without constituting a "taking," which must be compensated
under the Fifth Amendment.
If this fundamental legal principle is overturned by the Shuster bill, each
of the following scenarios become possible:
A bill to reauthorize the Clean Water Act was introduced
by Chairman Shuster (R-PA) the first week of February. Call or write Rep.
Shuster by the end of March to let them know that the Clean Water Act needs
to be stronger and more enforceable, not another way for polluters to circumnavigate
their responsibilities to the planet. Rep. Shuster can be reached at:
- The Clean Water Act requires a factory to clean up its discharges
so downstream property owners do not suffer from the pollution. By the property
right's movement's argument, the factory's owners have the right to pollute
unless the government is willing to pay them to stop.
- A town council passes a zoning code to prevent heavy industry from
locating in a residential neighborhood. According to the "takings"
advocates, since a property owner might make more money by selling lots
for industrial development than for houses, the town would either have to
compensate the land-owner for difference in price or invalidate its zoning
Committee on Transportation
For more information about the Clean Water Act, contact
one of the following organizations:
US House of Representatives
Room 2165 Rayburn House
Washington, DC 20525
Clean Water Network
1350 New York Avenue, NW, Suite 300
Washington, DC 20005
The Clean Water Network, a coalition of over 500 environmental, religious
and public interest organizations working collectively to strengthen the
Clean Water Act.
American Oceans Campaign
725 Arizona Avenue, Suite 102
Santa Monica, CA 90401